TAMARA ARBITRATION RULES
(applicable as from 1 January 2015)
1.
General
1.1
If the parties have agreed that the dispute will be settled in accordance with the rules of
TAMARA, the most recently updated version of these rules at the time of receipt of the copy of
the notification of arbitration by TAMARA shall apply. The same version of these rules will apply
to any counterclaim instituted within the same arbitral proceedings.
1.2
Unless otherwise agreed by the parties, the seat of the arbitration will be Rotterdam.
1.3
“TAMARA” is the Foundation Transport And Maritime Arbitration Rotterdam
-Amsterdam. Any
messages which pursuant to these rules are to be sent to TAMARA, are to be directed to
TAMARA’s management board, care of the Secretary, whose contact details can be
found on
www.tamara-arbitration.org
.
1.4
Wherever these rules refer to "the arbitrators" they refer to the three arbitrators who jointly
decide or to the sole arbitrator who decides on his own.
1.5
For the purposes of these rules, "in writing" also means fax and e-mail messages.
1.6
The parties may appear at the arbitration proceedings in person, or be represented by a
practising lawyer, or be represented by any other person expressly authorised in writing for this
purpose. The parties may be assisted in the arbitration proceedings by any persons they may
choose.
2.
Commencement of arbitration proceedings
2.1
Notification of arbitration must be given to the other party in the form of a written notice with a
description of the dispute. The said notice shall contain a specification of what the party
commencing the proceedings wishes to submit to arbitration. A copy of the notification of
arbitration must be sent to TAMARA by post, fax or email.
2.2
The arbitration proceedings shall commence on the date of receipt of the copy of the notification
of arbitration by TAMARA.
2.3
The provisions in the previous paragraphs of this article shall apply equally to the institution of a
counterclaim. In the case of a counterclaim, the notification of arbitration may be included in the
statement of defence. If the counterclaim is included in the statement of defence, it shall be
deemed to have been instituted at the moment at which the statement of defence is uploaded,
unless the parties agree that arbitration shall not be carried out by electronic means, in which
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case the counterclaim shall be deemed to have been instituted at the moment at which the
statement of defence is received by TAMARA.
3.
Arbitrators
3.1
Disputes shall be settled by three arbitrators, unless the parties agree that the dispute shall be
settled by a sole arbitrator. In cases where the principal claim, excluding interest and costs,
does not exceed the amount of EUR 25,000.00, the dispute shall be settled by a sole arbitrator.
Appointment
3.2
TAMARA shall, if so requested, supply information about available arbitrators to any person
and, if necessary, assist that person in the appointment of arbitrators.
3.3
If, at the time of the notification of arbitration or thereafter, the claimant mentions that for the
time being the notification of arbitration is aimed merely at the preservation of rights, the
appointment procedure can be deferred for an indeterminate time period until one of the parties
makes a request for continuation.
3.4
If the notification of arbitration does not include the appointment of an arbitrator, the claimant
must appoint an arbitrator within a time period of fourteen days. Subject to objections by the
respondent, TAMARA may extend this time period at the request of the claimant.
After the appointment of the arbitrator by the claimant, the respondent has a time period of
fourteen days to appoint a second arbitrator. On unanimous request, TAMARA may extend this
time period.
If the respondent fails to appoint an arbitrator in time, TAMARA - in the interest of hearing both
parties - shall ensure that the respondent has, in all fairness, had sufficient opportunity to do so.
If this is not the case, TAMARA shall extend the time period for the benefit of the respondent.
3.5
If a party fails to appoint an arbitrator in time, TAMARA shall appoint an arbitrator at the request
of the other party.
3.6
The two arbitrators appointed by the parties and/or TAMARA shall jointly appoint a third
arbitrator.
3.7
If the parties have agreed to appoint a sole arbitrator, or if the appointment of a sole arbitrator is
prescribed by article 3, paragraph 1, the parties shall jointly appoint the sole arbitrator within a
time period of fourteen days after the notification of arbitration. If the joint appointment is not
made in time, TAMARA shall - at the request of any party - appoint an arbitrator.
3.8
A sole arbitrator must always be a lawyer. If there are three arbitrators, at least one of them
must be a lawyer.
3.9
If there are several respondents, they must jointly appoint an arbitrator. If the respondents fail to
reach such agreement in time, TAMARA shall - at the request of any party - appoint an
arbitrator.
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3.10
If the appointment of a sole arbitrator is prescribed by article 3, paragraph 1, second sentence,
and the respondent institutes a counterclaim of which the principal amount exceeds EUR
25,000.00, the dispute shall be settled by three arbitrators, unless the parties agree otherwise.
The claimant and the respondent shall each appoint an additional arbitrator, within two weeks
after being invited to do so by TAMARA or by the already appointed sole arbitrator.
3.11
The appointment of an arbitrator by TAMARA shall, in principle, be carried out within fourteen
days after such a request; the arbitrator shall be appointed from among those registered by
TAMARA on a publicly available list, unless this is not reasonably possible.
3.12
In cases not provided for in these rules, or if the appointment is not made in accordance with
these rules, each party shall be free to apply to the Court in interim relief proceedings in
accordance with the regulations established by law.
3.13
Those arbitrators who have accepted their appointments according to these rules, also accept
the validity and effect of these rules.
Discharge, challenge and substitution
3.14
An arbitrator who has accepted his mandate may, at his own request, be released from his
mandate either with the consent of the parties or with the consent of TAMARA.
3.15
An arbitrator who has accepted his mandate may be released from his mandate by joint
agreement between the parties.
3.16
An arbitrator who has accepted his mandate and who has become de jure or de facto unable to
perform his mandate, may, at the request of any party, be released from his mandate by
TAMARA.
3.17
An arbitrator who has accepted his mandate and, despite repeated demands, performs his
duties in an unacceptably slow manner, may, at the request of any party, be released from his
mandate by TAMARA.
3.18
An arbitrator who has accepted his mandate, may, in a case as referred to in article 9,
paragraph 6, at the request of any party, be released from his mandate by TAMARA.
3.19
Challenge of one or more arbitrators shall be made in accordance with the regulations
established by law. The time period specified in article 1035 of the Dutch Code of Civil
Procedure shall be two weeks. TAMARA shall forthwith be notified of the challenge.
3.20
An arbitrator whose mandate has been terminated for any reason whatsoever shall be replaced
pursuant to the rules applicable to his initial appointment.
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4.
Proceedings
4.1
Unless the parties agree otherwise, the language of the arbitration shall be the Dutch language
if all parties to the dispute are established in the Netherlands, or the English language in all
other cases.
4.2
Unless the parties explicitly agree otherwise, the arbitration will be settled via an online platform
("e-arbitration").
Rules of procedure
4.3
The arbitrators shall determine the rules of procedure. They shall accommodate the joint wishes
of the parties as much as possible. They shall enforce the rules of procedure and ensure that
the arbitration proceedings are conducted expeditiously. Unless the arbitrators, whether or not
at the unanimous request of the parties, determine otherwise, the course of the proceedings
shall be laid down as follows:
4.4
Immediately after their appointment, the arbitrators will allow the claimant a time period of four
weeks to file a statement of claim. After the filing of the statement of claim, the arbitrators will
allow the respondent a time period of four weeks to file a statement of defence.
4.5
A counterclaim is instituted prior to or in the statement of defence or, if no statement of defence
is filed, in the first written or oral defence. A counterclaim is permitted if it is subject to the same
agreement to arbitration as that on which the claim is based, or if the parties have either
explicitly or tacitly declared such agreement to be applicable. If a counterclaim is instituted, the
arbitrators shall allow the original claimant (the respondent in the counterclaim proceedings) a
time period of four weeks for his statement of defence in the counterclaim proceedings.
4.6
If a party has not been able to carry out a procedural step in time, the arbitrators will grant a new
time period of the same duration. If, however, the other party has notified the party concerned in
writing, prior to the granting of the new time period - with a copy to the arbitrators - that no
additional extensions will be permitted after the new time period to be granted, the procedural
step will have to be carried out within this new time period. If this is not achieved the arbitrators
will, at the request of the other party, decide that the right to carry out the procedural step has
lapsed. Only in the case of compelling circumstances may the arbitrators grant the party
concerned a final time period to carry out the procedural step in question.
4.7
After the statement of defence, or, in the case of a counterclaim, the statement of defence in the
counterclaim proceedings has been submitted, the arbitrators shall decide whether a second
round of written statements will follow or whether an oral hearing of the dispute will take place.
Other procedural rules
4.8
During each arbitration, the arbitrators shall give the parties an opportunity to plead their case
orally, unless the parties explicitly waive this right. However, in those cases where the principal
claim, excluding interest and costs, does not exceed the amount of EUR 25,000.00, no oral
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hearing of the dispute shall take place and the arbitration will be conducted on the basis of
documents alone. In that case, the statement of defence will be followed by a second round of
written statements.
4.9
If the respondent fails to appear at the arbitration proceedings despite the fact that, according to
the arbitrators, he has been sufficiently and appropriately summoned, an award will be rendered
after submission of the statement of claim. As long as no award has been rendered, the
respondent may still appear at the arbitration proceedings. In this case, the arbitrators shall
grant a time period for the submission of the statement of defence.
4.10
During the arbitration proceedings, a party may change or increase its claim or counterclaim, or
the grounds for these respective claims, if by doing so the other party's defence will not be
unreasonably hampered or the arbitration proceedings unreasonably delayed.
4.11
The respondent's cooperation in the appointment of arbitrators does not forfeit his right to
challenge the jurisdiction of the arbitrators. A motion to dismiss for lack of jurisdiction of the
arbitrators must be filed before all principal defences. In principle, a motion to dismiss for lack of
jurisdiction must be lodged by statement of defence; the arbitrators, however, may decide that a
motion to dismiss for lack of jurisdiction may be filed in a separate statement.
5.
Award
5.1
Unless different rules of procedure have been established, the arbitrators shall render an award
as soon as possible after the oral hearing or after completion of the last procedural step, if
possible within ten weeks.
5.2
The arbitrators may render a final award, a partial final award, or an interim award.
5.3
The arbitrators will make sure that as soon as possible the original of the award, or a copy
thereof certified by an arbitrator or by TAMARA, is sent to the parties.
5.4
The time period within which a party may request rectification of a manifest error which lends
itself for a simple rectification as referred to in article 1060, paragraph 1, of the Dutch Code of
Civil Procedure, as well as the time period within which a party may request an additional award
as referred to in article 1061, paragraph 1, of the Dutch Code of Civil Procedure shall be thirty
days after the date of dispatch of the award.
5.5
Only at the explicit request of a party shall the arbitrators ensure that the original of the final or
partial final award is deposited with the Registry of the Rotterdam District Court or the District
Court of the district within which the place of arbitration is located. The requesting party shall
bear the costs of the deposit unless decided otherwise by the arbitrators.
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5.6
By agreeing to arbitration in accordance with these rules, the parties are deemed to have
undertaken to comply immediately with an irrevocable award. An arbitral award may not be
appealed, unless the parties agree otherwise. In the latter case the arbitrators may, in the
instances where this is allowed by the law, declare the award provisionally enforceable, whether
or not subject to the provision of security.
5.7
The arbitrators shall make their award in accordance with the rules of law, unless the parties
have explicitly agreed that the arbitrators shall decide as amiable compositeur.
5.8
At the joint request of the parties, the arbitrators shall record the content of the amicable
settlement agreed between the parties in the form of an arbitral award in accordance with article
1069 of the Dutch Code of Civil Procedure.
6.
Interim relief proceedings and other provisional measures
6.1
The arbitrators may, on grounds of urgency and having r
egard to the parties’ interests, render
an arbitral award in interim relief proceedings at any stage of the arbitration proceedings. The
award in interim relief proceedings shall not prejudice the arbitrators' final decision on the
substance of the case. The award in interim relief proceedings is an arbitral award within the
meaning of article 1043b, paragraph 4, of the Dutch Code of Civil Procedure.
6.2
The arbitrators may, at the request of any one of the parties at any stage of the proceedings,
render such interim decision or grant such interim relief (within the framework of the regular
arbitration proceedings) in respect of the matters in dispute as they deem necessary or useful.
This decision shall not prejudice the arbitrators' final decision on the substance of the case. The
decision is an arbitral award within the meaning of article 1043b, paragraph 4, of the Dutch
Code of Civil Procedure.
6.3
If interim relief proceedings have to take place within the framework of a dispute which has not
yet been submitted to arbitration proceedings in accordance with these rules, or if the dispute
has been submitted to arbitration proceedings but not all the arbitrators have been appointed,
TAMARA shall, at the request of the claimant in the interim relief proceedings, appoint one or
more arbitrators depending on the number of arbitrators parties have agreed upon, unless the
parties themselves jointly appoint one or more arbitrators. The arbitrators appointed by
TAMARA are only appointed for the purpose of the interim relief proceedings, unless the parties
agree otherwise.
6.4
TAMARA must be notified of interim relief proceedings. The claimant shall be liable to TAMARA
for administrative costs.
6.5
The above shall not prejudice the right of a party to apply to the competent court for protective
measures.
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7.
Costs
7.1
The arbitration costs consist of administrative costs, the arbitrators’ fees and disbursements,
and other costs.
7.2
With respect to arbitration proceedings which have been notified pursuant to these rules, the
claimant shall be liable to TAMARA for administrative costs as fixed and published by
TAMARA's management board.
7.3
The appointed arbitrators shall work on the basis of an hourly fee as fixed and published by
TAMARA’s management board, unless the parties and the ar
bitrators jointly agree otherwise in
writing. The arbitrators shall immediately inform TAMARA if fees different to those fixed and
published by TAMARA are agreed.
7.4
Other costs are costs incurred by the arbitrators and/or TAMARA with regard to the arbitration,
such as the costs of experts appointed by the arbitrators, and costs for technical support and
interpreters.
Deposit
7.5
The arbitrators may require that the claimant pay a deposit from which the arbitration costs, to
the extent possible, be paid. If the respondent has filed a counterclaim, the arbitrators may
require a deposit from him as well.
7.6
As soon as possible after their appointment, the arbitrators, in consultation with TAMARA, shall
determine the amount of the deposit. On behalf of the arbitrators, TAMARA shall request the
party or the parties designated by the arbitrators to pay the deposit into TAMARA's third-party
account. At the request of the arbitrators, TAMARA may at any stage request an additional
deposit.
7.7
The arbitrators must inform TAMARA in time if the costs of the arbitration threaten to exceed the
deposit. The arbitrators must themselves ensure at all times that there are adequate funds on
deposit to pay the arbitration costs. TAMARA has no obligation to pay any costs that are not
covered by a deposit. No interest will be paid on the deposit.
7.8
The arbitrators may suspend the arbitration of the claim or the counterclaim if the relevant party
has not paid the requested deposit or the administrative costs charged to him. If a party does
not pay the requested deposit or the administrative costs charged to him within fourteen days
after a second written demand issued by TAMARA, he will be deemed to have withdrawn his
claim or counterclaim.
7.9
The parties shall be liable to TAMARA and the arbitrators for the arbitration costs in proportion
to the deposits that the said parties have made or are to make. The obligation to pay the
arbitration costs remains in full force, even if the arbitration proceedings have been terminated
for any reason whatsoever.
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Cost award
7.10
The unsuccessful party may be ordered to pay the arbitration costs. If more than one party is
partly unsuccessful, they may each be ordered to pay such portion of the arbitration costs as the
arbitrators deem reasonable.
7.11
Complaints against the amount of the arbitration costs as fixed by the arbitrators in the cost
award may be addressed in writing to TAMARA, setting out the reasons for the complaint.
TAMARA, after having consulted the party concerned and the arbitrators, shall decide on the
complaint. TAMARA's decision shall be final and binding upon the party and the arbitrators. In
cases in which TAMARA, in its opinion, is unable to quickly and simply give a binding ruling,
TAMARA shall be entitled to appoint a third party charged with giving a binding ruling. In that
case, the party and the arbitrators among whom a dispute exists must each advance half of the
costs of the third party charged with giving a binding ruling. The aforementioned third party shall
also decide who will ultimately bear the costs.
7.12
The unsuccessful or partly unsuccessful party may be ordered to pay such portion of the other
party's or parties' costs related to the arbitration as the arbitrators deem reasonable, namely the
costs for legal and other assistance, and other reasonable costs made in relation to the
arbitration. The party concerned may be ordered to pay these costs only in part, in the same
way as he may be ordered to pay the arbitration costs only in part.
8.
Applicability of the Dutch Code of Civil Procedure
The provisions of the Dutch Code of Civil Procedure shall apply to any matter insofar as it is not
governed by these rules. This applies, for instance, to the law of evidence, amendment of
claims, submission of documents, examination of witnesses, appointment of experts, on-site
inspections and the participation of the parties in a hearing.
9.
Final provisions
9.1
These rules shall apply to all proceedings that are commenced after 31 December 2014.
9.2
TAMARA’s management board has the right to amend th
ese rules. Amendments shall not apply
to arbitration proceedings that are already pending.
9.3
In cases not provided for in these rules and where parties cannot reach an agreement among
themselves, TAMARA shall decide or, if all the arbitrators have been appointed, the arbitrators
shall decide.
9.4
There shall be no liability on the part of TAMARA, or on the part of any of the members of its
management board in person, or on the part of any arbitrator for any act or omission in
connection with an arbitration subject to these rules, except in case of intent or wilful
recklessness on the part of the person or the legal person concerned, with regard to the
damage in the particular case.
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9.5
Any dispute between TAMARA and/or its management board members on the one hand and a
party or arbitrator on the other hand shall be subject to Dutch law and to the exclusive
jurisdiction of the Dutch Courts, specifically the Rotterdam District Court in the first instance.
9.6
Complaints about arbitrators with regard to the conduct of a case shall be in writing and
addressed to TAMARA; a copy of the complaint shall, at the same time, be sent to the
arbitrator(s) concerned as well as to the other party or parties. If TAMARA, after having heard
the arbitrator(s), finds that the complaint is well-founded, it shall issue written directives to the
arbitrator(s) concerned and summon him or them to strictly comply therewith. If, in the opinion of
TAMARA, the arbitrator concerned fails to comply with the directives, TAMARA shall notify the
parties thereof in writing, after which any party, in accordance with article 3, paragraph 18, has
the right to demand that TAMARA release the arbitrator concerned from his mandate. This right
must be exercised within 14 days of the date on which TAMARA sends the notification
mentioned above. TAMARA can, on request, extend this time period at its discretion.
9.7
In the event of a decision as referred to in article 1065a of the Dutch Code of Civil Procedure,
the appointment of the arbitrators will revive.
9.8
TAMARA’s m
anagement board has the power to have an award published without stating the
parties' names or any information that could disclose the parties' identities, unless a party has
objected to TAMARA in writing to that publication within one month of receiving the award.
9.9
The Dutch text of these rules is the only authentic text. In case of conflict between the Dutch text
and the text in another language, the Dutch text will prevail.
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